30. In accordance with the MPEP, and USPTO rules and procedure, a patent application may be made by someone other than the inventor in certain situations. In which of the following situations would an application not be properly made by someone other than the inventor?
(A) The inventor is deceased, and the application is made by the legal representative of the deceased inventor.
(B) The inventor is deceased, and the application is made by one who has reason to believe that he or she will be appointed legal representative of the deceased inventor.
(C) The inventor is a minor (under age 18) who understands and is willing to execute the declaration, but the application is made by the minor’s legal representative.
(D) The inventor is insane, and the application is made by the legal representative of the insane inventor.
(E) The inventor is legally incapacitated, and the application is made by the legal representative of the legally incapacitated inventor.
30. All answers accepted.
{ 5 comments… read them below or add one }
from the “exam analysis by john white of pli”:
“Rule 47! But a gift instead. Good thing since the answers are too funny to even get through. A talks about a dead person with a legal representative! Gee, I wonder how the client would communicate with their representative? B is really funny too. What would give you “reason to believe you’d be appointed”? Another communication from the “great beyond”? C is wrong but you can’t be sure. A child can obtain a patent, but I suppose the legal rep could too. D is a Rule 47 situation, but that is not what the question seeks. How can some who is “legally incapacitated” have a legal rep? I thought they were legally “incapacitated”. Whatever that means?”
i d/n understand what’s so funny. if u look in the mpep 409.01(a) it explicitly gives some of the choices as correct ones?
I think the answer should be (B) because it is speculative. Dead inventors can be represented by legal representatives, and so can insane or incapacitated inventors.
under 409.01(a)–”one who has reason to believe that he or she will be appointed legal representative of a deceased inventor may apply for a patent as legal representative in accordance with 37 CFR 1.42″
So B is not the answer.
It seems to me that the model answer states “all answers accepted” because there is no correct answer.
Please correct me if I am wrong. BTW, I didn’t get John White’s explanation either
Note also that 37 CFR 1.42 explains what a “legal representative” of a dead person is, namely, just what you’d expect: the executor or administrator of the deceased person’s estate. Similarly, the “legal representative” of someone who is legally incapacitated is the guardian or conservator of the legally incapacitated person’s interests (MPEP 409.02). I think that whoever wrote the question wanted the answer to be (C), but forgot that while a minor who understands the declaration is *allowed* to sign it, he is not *required* to do so (37 CFR 1.63 (a)(1)), which means that there is nothing to prevent his legal representative from doing so on his behalf.
What I don’t understand is how a question with no right answer could be a “repeat” question. Have they fixed it so that it now has a right answer?
I think the answer would be “C”.
MPEP 409 states:
A minor (under age 18) inventor may execute an oath or declaration under 37 CFR 1.63 as long as the *>minor< is competent to sign (i.e., understands the document that he or she is signing); a legal representative is not required to execute an oath or declaration on the minor’s behalf. See 37 CFR 1.63(a)(1).